Opinion 08-160

September 11, 2008

Digest:         A judge may respond to a “mass e-mail” that a bar association judicial screening committee sends to the general membership of the bar association asking for comments about the qualifications of an attorney who is a potential candidate for judicial office.

Rules:       22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 07-130; 06-156; 00-124 (Vol. XIX); 98-123 (Vol. XVII); 93-26 (Vol. XI).

Opinion:

          A judge received a “mass e-mail” from a bar association judicial screening committee that was sent to the general membership of the bar association, asking for comments about the qualifications of an attorney who is a potential candidate for judicial office. The judge asks whether he/she can respond to the e-mail by providing information about the attorney, either negative or positive, based on “the potential candidate having appeared before the judge as an attorney and/or having been a litigant in a matter handled by the judge.” The judge also asks whether he/she can “. . .cite specific reasons, whether positive or negative, based upon the conduct of the candidate while the candidate was an attorney appearing before the judge and/or was a litigant in a matter handled by the Judge.”

         Pursuant to the Rules Governing Judicial Conduct, a judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2). A judge, therefore, must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]) and shall not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2[C]).

         Nevertheless, the Committee has previously advised that a judge may respond to a request from a judicial screening panel, or a selection or nominating committee, for information about a judge’s re-appointment or about a candidate’s qualifications for judicial office (see Opinions 07-130; 00-124 [Vol. XIX]; 98-123 [Vol. XVII]). The fact that a judicial screening panel sends a request for information about a potential candidate for judicial office using a “mass e-mail” does not warrant a different result.

         As is the case when a judge provides a reference, the inquiring judge should draw from his/her personal knowledge of the potential judicial candidate, gained from the attorney’s appearances in the judge’s court, when responding to the bar association judicial screening committee’s request for information (see Opinion 93-26 [Vol. XI]). The judge should neither urge approval nor disapproval of a candidate (see 22 NYCRR 100.2[C]). If the judge responds on his/her judicial letterhead, the judge must include a notation that the response is “personal and unofficial” (see Opinion 06-156).